Hughes v Victorian WorkCover Authority

[2022] VSCA 124

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0105

PETER ALAN HUGHES	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2022
DATE OF JUDGMENT:	27 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 124
JUDGMENT APPEALED FROM:	[2021] VCC 839 (Judge Carmody)

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ACCIDENT COMPENSATION – Workplace injury – Serious injury – Injury to left elbow – Loss of earning capacity – Where adverse credibility findings – Whether judge equated physical capacity to perform roles with ‘suitable employment’ – Whether judge misstated or misinterpreted evidence – Whether judge gave adequate reasons – Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 325, 327 – Richter v Driscoll (2016) 51 VR 95, applied – Leave to appeal refused.

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Counsel
Applicant:		Mr A Ingram QC with Dr J Plunkett
Respondent:		Ms F Ryan SC with Ms E Golshtein
Solicitors
Applicant:	Maurice Blackburn Lawyers
Respondent:	IDP Lawyers

BEACH JA
MCLEISH JA
KENNEDY JA:

1The applicant is a 59 year old man who formerly worked as a butcher. He sought leave pursuant to s 327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘Act’) to bring an action in damages in respect of an injury he suffered to his left elbow in the course of his work.[1] In order to obtain that leave he needed to establish that he had suffered a serious injury within the meaning of s 325 of the Act.

[1]The applicant initially sought to bring claims in relation to a serious injury to his left elbow, a serious injury to his right elbow (secondary to the injury to his left elbow), a serious injury by reason of chronic regional pain syndrome and/or a serious psychological injury, however he abandoned reliance on all but the serious injury to his left elbow at the hearing.

2The applicant submitted that the left elbow injury was ‘serious’ with respect to both pain and suffering consequences, and loss of earning capacity consequences. In relation to the latter, the applicant was required to establish that the amount he was capable of earning in ‘suitable employment’ was no greater than 60 per cent of his ‘without injury’ earnings in accordance with the Act.

3A County Court judge made a number of adverse credit findings in respect of the applicant. These included findings about the level of his pain, as well as his physical capacity to perform three specific (non-butcher) roles. In the result, the judge only granted the applicant leave to bring proceedings for pain and suffering damages.

4The applicant now seeks leave to appeal the judge’s decision to dismiss his application in relation to economic loss. In particular, he claims that the judge erred in law by ‘equating’ a physical capacity to perform a role with the concept of ‘suitable employment’. He also alleges that the judge misstated or misinterpreted certain medical opinions, and failed to give adequate reasons.

5For the following reasons, we have determined that the judge did not err, and that leave to appeal will be refused.

Background

6The applicant was educated to Year 9 level and, at age 16, commenced an apprenticeship as a butcher. For the vast majority of his working life, the applicant has worked as a butcher, including in supervisory and management roles. The applicant has also worked as a truck driver, storeman, and facilities manager at Aquinas College in Ringwood.

7In or about September 2014, the applicant commenced working for Auspork Australia Pty Ltd (‘Auspork’) as a butcher, which involved heavy and repetitive duties.

8In or about March 2015, the applicant began to experience pain in his left elbow, and ceased his full-time role as a butcher from that time. It was not in dispute that the injury he developed was a consequence of his employment with Auspork between September 2014 and March 2015.

9The applicant attended his general practitioner (‘GP’), Dr Christina Illing, in relation to his condition, and was referred for an ultrasound of the left elbow which was performed on 22 April 2015. It recorded that there was no definite tear, joint effusion, or bursitis, or other abnormality but that there was lateral epicondylitis.

10The applicant was referred for an ultrasound guided steroid injection to his left elbow which was performed on 14 May 2015. His condition did not improve, and he was referred to orthopaedic surgeon, Mr Westh, who performed surgery on 19 November 2015, involving an extensor release, trimming of a bony prominence and joint arthrotomy.

11In a later report (of 27 July 2017), Mr Westh noted the ultrasound result, and reported that, when reviewed on 7 December 2015, the applicant’s wound had healed nicely and that he had no pain. Mr Westh recommended gentle exercise with a follow-up review, but there was no record of any review.

12The applicant made an attempt to return to work at Auspork in mid-2016, which was ultimately unsuccessful. He has not worked at Auspork since.

13The applicant has tried work as a butcher since leaving Auspork. He also worked on-and-off mowing lawns on a part-time basis. He claimed that he had tried on several occasions to find some suitable work, but that each time he had tried to resume a new job, his left elbow pain had forced him to cease work soon after.

Relevant statutory provisions

14The applicant relied upon para (a) of the definition of ‘serious injury’ in s 325 of the Act (‘permanent serious impairment or loss of a body function’). In order to be serious the pain and suffering consequence, or the loss of earning capacity consequence, needed to be fairly described as being more than significant or marked, and as being at least very considerable.[2] As explained further below, the judge found that the applicant satisfied this requirement and it is no longer in issue.

[2]Section 325(2)(c) of the Act.

15In the case of a loss of earning capacity, s 325(2)(e) of the Act additionally required the applicant to show a loss of earning capacity of 40 per cent or more, measured as set out in sub-s (f). Sub-section (f) provides:

for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—

(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—

(A) earning, whether in suitable employment or not; or

(B) capable of earning in suitable employment—

as at that date, whichever is the greater, and—

(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;

16In this case, the onus was therefore on the applicant to prove that his loss of earnings capacity was reduced by 40 per cent or more, by comparing what he was ‘capable of earning in suitable employment’ (‘with injury’ income), with his earning capacity had the injury not occurred (‘without injury’ income). As the judge recorded, the applicant ‘is required to establish that the amount he was capable of earning in suitable employment at the date of hearing was no greater than $768 gross per week’[3] (being 60 per cent of his ‘without injury’ income).

[3]Hughes v Victorian WorkCover Authority [2021] VCC 839, [47] (‘Reasons’).

17The judge also set out the definition of ‘suitable employment’ contained in s 3 of the Act.[4] It relevantly provides that suitable employment means employment in work for which the worker is currently suited, having regard to:

[4]Ibid [52].

(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii)the nature of the worker’s pre-injury employment;

(iii)the worker’s age, education, skills and work experience;

(iv)the worker’s place of residence;

(v)any plan or document prepared as part of the return to work planning process;

(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;

regardless of whether the work or the employment is available, or the work or the employment is of a type or nature that is generally available in the employment market.

Evidence of applicant

18The applicant swore three affidavits,[5] and was cross examined.

[5]Dated 27 February 2020, 3 June 2021 and 7 June 2021.

19As indicated already, the judge made a number of adverse credit findings in relation to the applicant’s evidence. In particular, the judge did not accept that the applicant’s description of his level of pain (as unbearable) was accurate, and found that the pain was not at a level, on its own, that could be considered serious.[6] The judge also found that the applicant was not giving ‘genuine and reliable answers’ in respect of his physical capacity to undertake alternative work.[7]

[6]Reasons, [37]–[38].

[7]Ibid [94].

20There were also other credit findings which will be referred to, below.

Medical evidence

General

21There were a number of medical reports adduced into evidence.

22Dr Illing (GP) provided four short reports, dated 28 March 2015, 12 September 2015, 12 December 2016 and 11 October 2017. In her report dated 12 December 2016, Dr Illing opined that it was highly unlikely that the applicant would ever be able to return to his pre-injury employment, but that he ‘should be able to be retrained and work in another industry that does not require repeated use of his left arm or lifting’. She considered that he was ‘currently fit to do administrative work’. In her final report she considered that the applicant’s condition had stabilised and was not likely to remit despite medical treatment.

23Although Dr Illing remained the applicant’s GP at the time of the hearing before the judge (on 7 June 2021), the applicant did not tender a more up to date report from Dr Illing.

24There were a number of other earlier reports, including an impairment assessment report dated 8 August 2018 prepared by Dr Roy Karna (rheumatologist), as well as a document dated 18 March 2016 from a Kelsie Hewitt (whose qualifications were unknown). In a report dated 4 April 2017, Dr Malcolm Brown (occupational physician) opined that the applicant was not yet fit for completely unrestricted pre-injury duties, but had capacity for pre-injury hours. He considered that the applicant had a current work capacity and was at work, and that friction in the workplace appeared to be a major factor affecting the applicant’s physical presentation and return to work.

25Dr Joseph Slesenger (occupational physician) examined the applicant on 29 April 2021 and provided a report dated 10 May 2021. Dr Slesenger expressed the opinion that the applicant retained ‘capacity for work with restriction’, namely no pushing, pulling, carrying or lifting over 10kg on an occasional basis and 5kg on a repetitive basis; avoiding prolonged gripping; avoiding twisting; and avoiding forceful pushing and pulling on the left side. Taking into account his symptoms, functional limitation, past employment history, residential location, age and the return to work arrangements, Dr Slesenger recommended that the applicant ‘returns to work’ four hours per day, three days per week (non-consecutive). Dr Slesenger also considered that the applicant may be a candidate for a pain management program, however noted that his current social circumstances may be a barrier to him engaging in any further therapeutic intervention.

26Dr Reza Sabetghadam (occupational physician) examined the applicant on 29 January 2021, and provided a report dated 11 February 2021. Dr Sabetghadam reported ‘mild’ restricted range of motion. He considered that the applicant had ‘abnormal pain behaviour’, and a heightened pain and disability perception due to psychosocial factors. He opined that the applicant had current capacity to work in alternative suitable employment, but should avoid ‘power grip with either hand and frequent flexion and extension of elbows simultaneously’. Working as a butcher posed a risk of aggravation. He considered that the applicant had current capacity to work as a customer service officer/information officer, maintenance coordinator, hire controller/rental officer, transport and despatch clerk, and retail sales assistant with some training.

27In a further report dated 19 April 2021 Dr Sabetghadam opined that the applicant was fit to return to alternative employment in a full-time capacity. He also considered alternative roles which had been identified in a vocational report (the ‘Recovre report’) relied upon by the respondent, and opined:

In my clinical opinion, Mr Peter Hughes has current capacity to participate in ergonomic demands of occupations such as road traffic controller, meter reader, car park attendant, parking inspector considering conditions of both elbows.

However, in regard to careers such as courier, picker and packer, these occupations may have inherent requirements of frequent power grip with either hand and simultaneous flexion or extension of the elbow on some occasions if the pace of work is high. However, with picker position, in the location of Port Melbourne, the inherent requirements are doable by Mr Hughes.

Report of Mr Chehata

28Mr Ash Chehata (orthopaedic surgeon) examined the applicant on 9 March 2021 and prepared a report dated 11 March 2021. Given the report is the subject of proposed grounds 3 and 4, it will be set out in some detail.

29Mr Chehata noted that the applicant was ‘of no fixed address, living a few days with mother, few days with a friend and a few days with ex-wife’ (on page 1 of his report). He later referred to the applicant’s loss of independence ‘as well as not having a fixed address, which is weighing heavily on him and certainly contributes to the classic fragile nature of his presentation’. He considered that the applicant was clearly a ‘fragile’ individual with severe depression and anxiety, and also reported that the applicant suffered ‘significant and severe pain.’

30The report then responded to a number of specific questions. In particular, Mr Chehata was asked for his views as to whether the applicant could return to full-time unrestricted work, when considering his left elbow only (question 4). He answered:

At this stage, it is impossible to believe that he will have a capacity to return to full time employment. The idea, in concept, that he would be safe to interact with other individuals with any stretch of the imagination, would be impossible. There is no doubt that not only is there severe pain, but there are also concurrent supratentorial psychological and psychiatric issues which continue to be a serious issue.

31He was asked about the applicant’s realistic capacity for work when considering his personal skills and restrictions from his left elbow injury alone (question 5) and said:

Mr Hughes has no realistic capacity for work. Although he may be able to perform some intermittent duties a few hours and even a few days every few weeks may be reasonable in terms of lawn mowing or performing some form of unskilled manual work may be the absolute maximum that he would have a capacity for.

32Finally, he was asked about the applicant’s prognosis, including whether he would require future treatment and/or surgery, and stated (question 6):

There is no doubt that at this stage he is a very fragile individual and is a man with no fixed address with mental health issues. He now has ongoing chronic pain and needs social support more than anything else. His prognosis unfortunately is incredibly poor, as is his high likelihood for suicidal ideations and mental health issues. Although this is out of my specific scope of practice, it is very clear even as a general doctor that this individual has a high risk of further issues. This is evidence by the fact that on 24 May 2016 he was involved as a witness to the murder of his housemate when they were driving to the train station. An assailant approached the car, shot and killed his housemate. This then was further aggravated by PTSD, which clearly has not resolved and again, this is a symptom of the dire situation that is [sic] social circumstances have placed him in and he is effectively homeless in some ways.

33Mr Chehata concluded that the applicant would need some form of social support and that he could not envisage the applicant would ever return to any form of employment on a consistent and reliable basis.

Vocational assessment reports

34An early report prepared by Ms Emily Sabatino (a rehabilitation consultant) dated 8 February 2017 (the ‘Nabenet report’) was relied upon by the respondent, which identified that a number of administrative occupations would be suitable for the applicant. However, as the judge observed, the report was completed some four years prior to the hearing date.

35The Recovre report was dated 10 March 2021, and was prepared by Ms Robyn Willett (vocational consultant) and Ms Janette Ash (occupational therapist). The report considered the restrictions identified by Dr Sabetghadam, as well as the applicant’s background, including his place of residence, age, education, skills (including his lack of computer skills), and work experience. It concluded that the applicant was essentially qualified for unskilled work, that he possessed adequate English language skills and that he had extensive experience working in food processing.

36The report identified seven vocational options that were said to be suitable for the applicant and, in particular, three job roles were recommended for him, being a road traffic controller, a meter reader, and a picker (a specific role in a warehouse for spectacles) (the ‘3 roles’). In making this recommendation the report contained details of the physical demands of each role (in terms of matters such as overhead/forward reach and lifting/pulling). Each of these roles meant that the applicant could earn more than 60 per cent of his ‘without injury’ earnings.

37The applicant also tendered a report dated 3 June 2021 from Ms Katrine Green (psychologist) which is also the subject of proposed grounds 3 and 4.

38The report set out a detailed background and included a number of references to psychological issues or symptoms, including those the subject of a report of Dr Tagkalidis, a psychiatrist. Ms Green considered a range of occupations (which were not ultimately relied upon by the respondent), and concluded that each of these occupations was ‘not a suitable employment option’ within the foreseeable future.

39In relation to the 3 roles recommended in the Recovre report, Ms Green stated the following:

In regard to the suitable employment options provided by Recovre [10/3/21] and reported above the occupations of courier [courier/delivery driver] and picker packer [hand packer] have been included in the occupational analysis above and it has been concluded that they are not suitable employment options for Mr Hughes... The occupation of road traffic controller involves repetitive use of the upper limbs and manual handling of signage and portable bollards such work exceeds the physical restrictions reported in the medical opinions above therefore due to his left elbow injury from a physical perspective it is not a suitable employment option for him. Mr Hughes would also need to get the required training to qualify for such work… The occupation of meter reader is also work Mr Hughes has not performed that aside, the physical demands of the duties are incongruent with the physical restrictions in the medical opinions above, therefore it is not a suitable employment option for Mr Hughes within the foreseeable future.[8]

[8]Emphases in original.

40She concluded her report as follows:

In concluding this report, having regard for the medical opinions provided, the analysis of the above occupations, and the physical demands of the core duties, it is concluded that due to Mr Peter Hughes left elbow injury and current physical capacity, he is unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment on a consistent, sustained, reliable and permanent basis within the foreseeable future.[9]

[9]Emphasis in original.

Judge’s reasons

41The judge identified the issues between the parties, which included the applicant’s credit, and also whether the applicant ‘has a capacity to earn greater than 60 per cent of “without injury” earnings in suitable employment’.[10] After summarising the statutory scheme,[11] the judge expressly acknowledged the need to give detailed reasons.[12]

[10]Reasons, [7].

[11]Ibid [8]–[9].

[12]Ibid [10].

42The judge made findings about the applicant’s background including:

•that the applicant was (then) 58, and was only educated to Year 9;[13]

•that the applicant’s pre-injury employment predominantly consisted of work in the meat industry, that he had been a qualified butcher who worked in supervisory roles,[14] and that the agreed medical opinions were that he could not return to that role;[15]

•that the applicant had previous work experience as a storeman, a driver with Linfox Transport, on a drilling rig and as a facilities manager at Aquinas College in Ringwood (for eighteen months);[16]

•that the applicant’s post-injury employment was some butcher work and part-time work mowing lawns;[17]

•that he attempted to return to work, but it was unsuccessful;[18]

•that the applicant lived with his former partner but slept at his mother’s house 40 minutes away one night a week, and that at the time of the hearing he was using his mother’s car;[19] and

•that the applicant was right-handed,[20] was able to fish,[21] and unable to take analgesic medication to alleviate his pain symptoms due to a liver condition.[22]

[13]Ibid [12], [14], [48].

[14]Ibid [14], [49]–[50].

[15]Ibid [51].

[16]Ibid [15], [48].

[17]Ibid [87].

[18]Ibid [16], [19].

[19]Ibid [13], [66], [92].

[20]Ibid [16].

[21]Ibid [43].

[22]Ibid [35].

43The judge next described the details of the injury, and noted the respondent’s concession that it occurred in compensable circumstances.[23] He described the medical treatment the applicant received for his injury from Dr Illing and Mr Westh.[24] He also recorded the difficulties the applicant faced, including that he witnessed a friend of his being shot and killed.[25] He accepted the observations in the medical reports that the applicant was ‘pain focused’ and that part of this was driven by his mental state. However, he noted that he was required to disregard any psychological effects of the injury for the purposes of the application.[26]

[23]Ibid [20].

[24]Ibid [21]–[26].

[25]Ibid [27]–[29].

[26]Ibid [33].

44The judge next considered the pain and suffering consequences of the left elbow injury. As indicated already, he rejected the applicant’s evidence that his pain was ‘unbearable’(noting his ‘pain focus’) and did not accept that his level of pain met the threshold on its own.[27] He also considered that the applicant had not taken up pain management programs,[28] and did not accept that the applicant realistically was going to pursue a career as a scuba driver (as he had claimed).[29] However, he found that the loss of his occupation as a butcher was ‘very considerable’,[30] and ultimately concluded that (when taken together) the level of pain, interruption to sleep and loss of occupation met the ‘very considerable’ threshold.[31]

[27]Ibid [37]–[38].

[28]Ibid [36].

[29]Ibid [42].

[30]Ibid [41].

[31]Ibid [44].

45The judge then considered loss of earning capacity. He recorded the applicant’s limited education and training and noted his trade was as a butcher. However, he also noted that he ‘can be a self-starter who can work alone in employment or has been a person entrusted with the responsibility of directing and supervising other workers in the butchering business’.[32] The judge accepted that the medical opinions suggested that the applicant could not return to his pre-injury occupation as a butcher.[33] Although he recorded that the applicant’s case was that he had no capacity for any employment,[34] he identified that ‘the issue to decide’ was what amount of income the applicant was capable of earning in ‘suitable employment’ as at the date of the hearing.[35] He then referred to, and extracted, the definition of ‘suitable employment,’[36] and proceeded to consider the medical evidence and vocational assessment reports in some detail.[37]

[32]Ibid [50].

[33]Ibid [51].

[34]Ibid [47].

[35]Ibid. See also [47], [7(c)].

[36]Ibid [52].

[37]Ibid [53]–[89].

46The judge found that the medical reports of Dr Illing, Ms Hewitt, and Mr Westh were outdated.[38] Dr Karna also did not offer any opinion about the applicant’s capacity for suitable employment (although he reported signs in the palms of both hands which were consistent with ongoing use).[39] He considered that Dr Brown’s opinion was that with careful management the applicant could have returned to full-time pre-injury employment within a few months of his examination in April 2017. However, the fact was that the applicant’s employment ceased in the middle of 2017, and he had not returned to work as a butcher.[40]

[38]Ibid [55], [56], [60].

[39]Ibid [74]–[75].

[40]Ibid [73].

47The judge considered the evidence of Mr Chehata, and found that the opinions contained in the final part of his report were outside his expertise as an orthopaedic surgeon.[41] The judge considered that his report had all the ‘hallmarks of an advocate for the applicant, rather than a dispassionate objective orthopaedic medical examiner’.[42] The judge considered that the evidence was that the applicant was not homeless and that the picture that Mr Chehata presented was not supported by other evidence in the proceeding.[43] The judge further noted that Mr Chehata was the only medical examiner who found that the applicant was totally incapacitated for suitable employment.[44]

[41]Ibid [65].

[42]Ibid.

[43]Ibid [66].

[44]Ibid [67].

48In relation to Dr Slesenger, the judge noted that he did not express any opinion about the suitable employment roles set out in the Recovre report.[45] He concluded that Dr Slesenger’s opinion was that the applicant had a capacity to engage in employment, but that it was uncertain from his report whether he meant a return to previous employment or suitable employment. He considered that Dr Slesenger had outlined that 12 hours a week with restrictions was an appropriate starting point for the applicant to engage in employment.[46]

[45]Ibid [68].

[46]Ibid [71].

49Finally, the judge set out the opinions of Dr Sabetghadam and concluded that it was clear from his comprehensive reports that the applicant ‘has a capacity to engage in the alternative occupations of road traffic controller, meter reader, carpark attendant or a light picker-type job, as outlined in the Recovre report’.[47]

[47]Ibid [79].

50The judge next turned to the vocational assessment reports.

51He noted that the Nabenet report was outdated.[48] However, it was relevant insofar as it showed that the applicant had the potential to engage in suitable employment but had not allowed himself those opportunities. Apart from a short period of employment as a butcher and part-time lawn mowing, he had not worked since ceasing work at Auspork. In 2017, his GP had certified him fit for alternative duties. The judge found that he ‘did not take up that opportunity’.[49]

[48]Ibid [86].

[49]Ibid [87].

52The judge found that Ms Green did not set out why she had discounted or disagreed with Dr Slesenger’s opinion that the applicant had the capacity to engage in suitable employment with restrictions.[50] He was not satisfied that Ms Green properly analysed all of the medical evidence relating to the applicant’s physical disability, and considered that she had given too much weight to the applicant’s psychological problems.[51] He also noted that she came to a common conclusion in respect of a number of potential roles.[52] Further, she did not analyse the 3 roles outlined in the Recovre Report and set out why, in her opinion, the applicant could not undertake those particular jobs, but rather simply stated that these occupations were not suitable occupations for the applicant.[53]

[50]Ibid [81].

[51]Ibid [82].

[52]Ibid.

[53]Ibid [84].

53The judge then referred to the 3 roles recommended in the Recovre report, and extracted the oral evidence given by the applicant that he could not perform these roles.[54] The judge then stated:

I find that the plaintiff was not giving genuine and reliable answers in respect of his physical capacity to perform those three specific roles of suitable employment. The plaintiff has taken the position or belief that he has no capacity to do any form of employment. This approach by the plaintiff is contrary to the medical opinions of Dr Slesenger and Dr Sabetghadam, who are expert occupational physicians. I find the plaintiff has the physical capacity to work in the alternative suitable employment roles of a road traffic controller, a meter reader and a light picker role. Each of these jobs he could perform on a full-time basis within the restrictions set out by Dr Slesenger and Dr Sabetghadam.[55]

[54]Ibid [91]–[93].

[55]Ibid [94].

54The judge thereby found that the applicant had the capacity to earn an income greater than $768 gross income per week (which was the ‘agreed 60 per cent figure’), and dismissed the application for leave to bring proceedings for damages for loss of earning capacity.[56]

[56]Ibid [95]–[96].

Proposed grounds of appeal

55The applicant advanced the following four proposed grounds of appeal:

(1)The learned trial judge erred in law (at paragraphs [94] to [96]) in equating a physical capacity to perform the roles of road traffic controller, meter reader and light picker, with a finding that the roles were ‘suitable employment’ as defined in section 3 of the Act.

(2)The learned trial judge erred in law in failing to provide adequate reasons for his finding that roles of road traffic controller, meter reader and light picker, were ‘suitable employment’ as defined in section 3 of the Act.

(3)The learned trial judge misstated or alternatively misinterpreted the evidence of orthopaedic surgeon Mr Chehata and vocational assessor Ms Katrine Green.

(4)The learned trial judge failed to demonstrate any or adequate reasons for disregarding the evidence of orthopaedic surgeon Mr Chehata and vocational assessor Ms Katrine Green.

Proposed grounds 1 and 2[57]

Applicant’s submissions

[57]Consistent with approach of the applicant, it is appropriate to consider proposed grounds 1 and 2 together, and proposed grounds 3 and 4 together.

56The applicant relied on the decision of this Court in Richter v Driscoll (‘Richter’),[58] and submitted that physical capacity to perform a particular task does not mean that employment requiring that task thereby becomes ‘suitable employment.’ The applicant noted that, although senior counsel for the applicant made numerous references to Richter in his closing address, Richter was not referred to in the judge’s reasons.

[58](2016) 51 VR 95; [2016] VSCA 142 (‘Richter’).

57The applicant submitted that, at para 94, the judge ignored the important distinction identified in Richter, and instead equated a physical capacity to perform the 3 roles with a finding that those roles were ‘suitable employment’, as defined in s 3 of the Act.

58In oral submissions, senior counsel for the applicant submitted that the applicant’s case (consistent with the medical opinions, including that of Mr Chehata) was not that he had no capacity for any work; rather that he had no capacity for work in ‘suitable employment’ (given that he retained a limited use of the function of his left hand).

59Counsel for the applicant also took the Court to the detail of the Recovre report, emphasising that the 3 roles were inappropriate, having regard to a number of factors, including the applicant’s limitations and reports of pain. He invited us to find that the judge erred (at para 94) in rejecting the applicant’s evidence, having regard to the totality of the evidence. In particular, he submitted that the judge erred in his treatment of Dr Slesenger’s opinion, who had only recommended that the applicant return to part-time work (of four hours a day, three times a week). It was therefore wrong for the judge to have treated Dr Slesenger and Dr Sabetghadam together and ignore that there was a distinction between their opinions.

60The applicant further submitted that, even if the judge made no error regarding suitable employment, he failed to provide adequate reasons.

Analysis

61In the case of Richter, a worker’s compensation payments were terminated after she had been out of work for 20 years after suffering the relevant injury. A Panel later found that the worker did not have ‘no current work capacity’.

62This Court determined that the Panel had misconstrued the concept of ‘current work capacity’ and failed to give reasons. In terms of the misconstruction, Ashley and Kaye JJA espoused a number of principles, including:

Third, we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment—‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’—than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, para (a)(ii), (iii) and (iv) would have no work to do.[59]

[59]Ibid 114 [76].

63The Court further found that the Panel misdirected itself about the concept of ‘no current work capacity’ in concluding that the worker would be able to perform the relevant employment ‘in line with her current physical and mental condition’.[60] In so doing, it did not bring into account the worker’s age, previous experience, education, skills and place of residence, but focused entirely on the worker’s physical capacity. In particular, it failed to consider that the worker had been out of all work for 20 years.

[60]Ibid 123–4 [102]–[107] (Ashley and Kaye JJA).

64It may be accepted that, consistent with Richter, the concept of ‘suitable employment’ involves more than an examination of the applicant’s physical capacity. However, we are not satisfied that the judge in this case ‘equated’ a physical capacity with a finding that the 3 roles were ‘suitable employment’.

65At the outset, a number of the applicant’s complaints can be readily rejected. The applicant’s emphasis on the ambit of his case was disputed by the respondent, but is of no real significance. As indicated above, the judge clearly identified that the relevant issue to decide was what amount of income the applicant was capable of earning in ‘suitable employment’. The absence of a reference to Richter cannot of itself establish that the judge ‘equated’ a physical capacity with the concept of ‘suitable employment’. Even if we were to come to a different view as to whether the roles were suitable on our own examination of the Recovre report (which we do not), that would not establish that the judge made the error alleged. Further, even if there was some misunderstanding of Dr Slesenger’s report (which we likewise do not accept), this would also not establish that the judge misconstrued the concept of suitable employment as alleged.

66In so far as the applicant relies on the judge’s analysis in para 94,[61] in our opinion the focus of that paragraph is the judge’s rejection of the evidence of the applicant (extracted in the previous four paragraphs) to the effect that he could not physically perform the 3 roles. More particularly, the judge made a credit finding that the applicant’s evidence was not ‘genuine and reliable’.

[61]See [53] above.

67This credit finding does not ‘equate’ to a finding that the roles were ‘suitable employment’ as the applicant claims. Rather, the judge’s conclusion that the 3 roles were ‘suitable’ rests on the whole of his earlier analysis. As set out above, that analysis included express reference to the definition of ‘suitable employment’; the definition of the central issue as pertaining to ‘suitable employment’; a consideration of the medical evidence (including the reports of Dr Sabetghadam) in terms of the ‘suitable employment’ concept; as well as the making of findings about the matters the subject of the definition of ‘suitable employment’.

68We are therefore not satisfied that the judge ‘equated’ the concept of suitable employment with physical capacity as alleged by proposed ground 1.

69In so far as it was suggested that we should overturn the judge’s credit finding, that finding was inevitably affected by impressions about the credibility or reliability of the applicant as a result of seeing and hearing him give his evidence. Although this Court is bound to conduct a real review of the evidence, restraint is appropriate where a trial judge has made factual findings which are likely to have been affected by impressions about the credibility or reliability of witnesses as a result of seeing and hearing them give their evidence. In such a case, there should not be interference unless those findings are ‘glaringly improbable’, ‘contrary to compelling inferences’,[62] or demonstrably wrong by reason of ‘incontrovertible facts’.[63]

[62]Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ); [2019] HCA 28.

[63]Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686–7 [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); [2016] HCA 22.

70The applicant has not demonstrated any such error. There was medical evidence from Dr Sabetghadam which clearly supported the judge’s finding, which would be sufficient even if the judge was wrong about Dr Slesenger. In any event, we do not accept that the judge made an error about Dr Slesenger, who merely recommended that the applicant ‘returns to work’ on reduced hours. He did not suggest that the applicant’s capacity was permanently limited to those hours, and in fact opined that the applicant retained ‘capacity for work’ with (physical) restrictions. It was thereby open, and we think correct, for the judge to characterise the 12 hours a week as a ‘starting point’, and consider that his report was consistent with that of Dr Sabetghadam.

71Turning to the complaint about reasons, the judge identified the relevant issue, and made extensive findings about the matters contained in the definition of ‘suitable employment’ which supported the conclusion that the 3 roles were unskilled roles suitable to the applicant’s personal characteristics and circumstances. He also rejected the applicant’s evidence about the extent of his pain, and made findings (giving reasons) as to which medical reports he rejected and which he accepted as to the applicant’s capacity. He specifically identified that Dr Sabetghadam’s reports supported the view that the applicant had a capacity to engage in the 3 roles, which he considered to be consistent with Dr Slesenger’s opinion. He rejected the applicant’s evidence that he could not physically perform the relevant roles.

72The reasons were comprehensive and clear. They clearly disclosed the ‘path’ or ‘route’ by which the judge reached the ultimate conclusion[64] that the applicant had a capacity to earn more than 60 per cent of ‘without injury’ earnings in suitable employment.

[64]Thapa v Transport Accident Commission (2021) 97 MVR 268, 289 [96] (Beach, Kaye and Kennedy JJA); [2021] VSCA 239.

73Proposed grounds 1 and 2 are without merit.

Proposed grounds 3 and 4

Applicant’s submissions

74The applicant highlighted Mr Chehata’s answer to question 5, namely that the applicant had ‘no real capacity for work’ having regard to his physical condition. Although he expressed a general concern as to the psychological wellbeing of the applicant, he specifically noted that ‘this is out of my specific scope of practice’. The applicant submitted that there was no basis for the judge to disregard the opinion expressed by Mr Chehata. In oral submissions counsel emphasised that the answer to question 5 dealt solely with physical issues and made no reference to non-organic matters.

75The applicant submitted that the opinion expressed was very much within Mr Chehata’s area of expertise as an upper limb surgeon. The judge failed to identify that the expert was dealing with a purely organic injury and thus misstated or misunderstood the thrust of the evidence and further failed to provide an adequate reasoning process for disregarding that evidence.

76The applicant also submitted that the basis upon which the judge disregarded this important evidence (being that Mr Chehata was an advocate for the applicant) was not argued by the respondent at trial, and thus constituted an error of law (citing Sutton vLaminex Group Pty Ltd (‘Sutton’)[65]).

[65](2011) 31 VR 100, 119–21 [101]–[111] (Tate JA); [2011] VSCA 52 (‘Sutton’).

77The applicant submitted that the adverse findings with respect to Mr Chehata’s evidence were exacerbated by the finding that Mr Chehata had identified the applicant as a homeless individual. In fact, Mr Chehata explained that the applicant was of no fixed address living a few days with his mother, a few days with a friend and a few days with his ex-wife. The applicant submitted that this was consistent with evidence noted by numerous other witnesses.

78The applicant further submitted that the reasoning process for the rejection of Ms Green’s report was flawed. Contrary to the finding of the judge, Ms Green provided a detailed analysis as to why each role was unsuitable for the applicant, and the judge failed to adequately reason why her conclusions were disregarded. The suggestion that Ms Green did not ‘set out why she has discounted or disagreed with Dr Slesenger’s opinion’ was a mischaracterisation of Dr Slesenger’s opinion, given that Dr Slesenger did not opine that the applicant could work full-time.

79The applicant contended that Ms Green was explicit that the applicant’s inability to perform the 3 roles was based on his physical limitations, and not psychological conditions (as the judge found).

Analysis

80It is true that Mr Chehata’s answer to question 5 contained no reference to psychological or social issues. However, equally, the answer does not expressly limit itself to physical issues. Consistent with the extensive reference to psychological and social issues throughout the report, the opinion cannot be taken to be restricted to organic issues. In particular, the answer to question 5 cannot be read in isolation from Mr Chehata’s view (expressed in the answer to the previous question) that it was ‘impossible to believe’ that the applicant would have a capacity to return to full-time employment by reason of psychological and other issues. In such circumstances the judge did not ‘fail to identify’ that Mr Chehata was dealing with a purely organic injury in answering question 5.

81It was also correct for the judge to reject the answer to question 5 for at least three other reasons.

82First, although the applicant submitted that the judge was wrong to find that Mr Chehata was the only medical practitioner to conclude that the applicant was ‘totally incapacitated for suitable employment,’ such a characterisation was clearly correct from a fair reading of his report. In particular, Mr Chehata opined (at question 5) that the applicant had ‘no realistic capacity for work’ (save for a very small number of ‘intermittent’ duties), and concluded with the statement that he could not envisage he would ever return back to ‘any form of employment’. There was no error in rejecting this opinion, which was against the preponderance of the evidence.

83Secondly, as explained already, the report contained extensive references to extraneous issues, as well as extreme, emotive language. For example, the answer to question 4 contained reference to ‘concurrent supratentorial psychological and psychiatric issues’, even though the question called for a consideration of only the physical injury. In such a context, although there were aspects of the report that were actually unhelpful to the applicant (and we would not have described Mr Chehata as an ‘advocate’), it was both open and appropriate for the judge to reject the opinion on the basis that it was not ‘a dispassionate objective’ one.

84The decision in Sutton does not assist the applicant. In that case Tate JA found (with Ashley JA and Hargrave AJA agreeing) that a judge was not justified in arriving at adverse credit findings where no issue of credit was raised and ‘most importantly’, where such findings were not justified on the whole of the evidence.[66] This case is distinguishable from the present case. There was clearly an issue raised as to whether Mr Chehata’s report should be accepted given that it conflicted with other reports. We have also found that the judge’s assessment was justifiable.

[66]Ibid 119–21 [101]–[111], in particular [103] (Tate JA).

85Finally, as cited above, Mr Chehata’s report contained references to ‘significant’ and ‘severe’ pain. This directly conflicted with the judge’s findings about the level of pain experienced by the applicant (which did not reach the ‘very considerable’ level). Although the judge did not expressly rely on his findings in this regard, they provided an additional basis to reject Mr Chehata’s opinion — based as it was on an acceptance by Mr Chehata of the applicant’s history that he suffered from severe pain.

86The complaint concerning the applicant’s place of residence takes the matter no further. In any event, the judge’s (unchallenged) finding was that the applicant lived with his former partner, and on one night a week slept at his mother’s home. There was no error in finding that the picture painted by Mr Chehata (who described the applicant as ‘effectively homeless’ and of ‘no fixed address’) was not supported.

87We are therefore not satisfied that the judge erred in his treatment of Mr Chehata’s report. In particular, the judge was entitled to reject his opinion that the applicant had no realistic capacity for work.

88Insofar as Ms Green’s report is concerned, it was both open and appropriate to find that the report lacked detail. The Recovre report contained an extensive analysis of the physical demands of the 3 roles. This can be compared with the conclusory language in Ms Green’s report, which provided no analysis as to why the applicant could not undertake the 3 roles (as the judge found).

89It may also be true that Ms Green purported to give an opinion on the 3 roles without reference to psychological issues. However, given that the report otherwise contained extensive reference to psychological issues, the judge was entitled to find that she gave too much weight to psychological problems when reaching her conclusions. As a psychologist herself, she lacked qualifications to do otherwise.

90Finally, for reasons given already, the judge was entitled to read Dr Slesenger’s report as opining that the applicant had the capacity to engage in suitable employment with restrictions. He was therefore entitled to find that Ms Green did not set out why she had disagreed with this opinion. We agree with that assessment.

91Insofar as the applicant made complaint about the judge’s reasons, that complaint was, in reality, an invitation to disagree with the reasons actually given. The judge provided more than ample reasons as to why he rejected the opinions of Mr Chehata and Ms Green.

92Proposed grounds 3 and 4 are also without merit.

Conclusion

93We will refuse leave to appeal.

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